UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

MICHELLE L. DORCEY, 

Plaintiff, Case No. 2:11-cv-622

JUDGE GREGORY L. FROST

v. Magistrate Judge Norah McCann King

MOLLY CLEMENTS, et al.,

Defendants.

OPINION AND ORDER

This matter is before the Court for consideration of the following filings:

(1) a motion to dismiss (ECF No. 10) filed by Defendants Molly Clemens, Chad Neal,

and Marcia Carroll; 

(2) a combined memorandum in opposition and motion to certify a question to the

Supreme Court of Ohio (ECF No. 14) filed by Plaintiff;

(3) a memorandum in opposition to the motion to certify (ECF No. 16) filed by

Defendants; and 

(4) a reply memorandum (ECF No. 20) filed by Plaintiff. 

For the following reasons, this Court DENIES Plaintiff’s motion to certify (ECF No. 14)

and GRANTS Defendants’ motion to dismiss (ECF No. 10). 

I. Background

According to the First Amended Complaint, Plaintiff, Michelle L. Dorcey, was a Ohio

State Highway Patrol trooper. Defendants Molly Clemens, Chad Neal, and Marcia Carroll are

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all State of Ohio employees who work for the Ohio State Highway Patrol. Following a July

2010 incident involving these four individuals, the details of which are not important for present

purposes, Plaintiff’s last day of active employment was November 30, 2010. Plaintiff

subsequently filed the instant action in which she asserts both federal claims under 42 U.S.C. §

1983 and various state law claims. Defendants have filed a motion to dismiss the state law

claims (ECF No. 10), and Plaintiff responded by filing a motion to certify a question to the

Supreme Court of Ohio (ECF No. 14). The parties have completed briefing on the motions,

which are ripe for disposition.

II. Discussion 

A. Standard Involved

Defendant moves for dismissal under Federal Rules of Civil Procedure 12(b)(1), which

provides that an action may be dismissed for lack of subject matter jurisdiction. Under the

Federal Rules of Civil Procedure, “[p]laintiffs have the burden of proving jurisdiction in order to

survive a Rule 12(b)(1) motion . . . .” Weaver v. Univ. of Cincinnati, 758 F. Supp. 446, 448

(S.D. Ohio 1991) (citing Moir v. Greater Cleveland Reg’l Transit Auth., 895 F.2d 266, 269 (6th

Cir. 1990)). See also Rapier v. Union City Non-Ferrous, Inc., 197 F. Supp. 2d 1008, 1012 (S.D.

Ohio 2002) (citing McNutt v. General Motors Acceptance Corp. of Indiana, Inc., 298 U.S. 178,

189 (1936); Rogers v. Stratton Indus., Inc., 798 F.2d 913, 915 (6th Cir. 1986)) (“The plaintiff

bears the burden of establishing, by a preponderance of the evidence, the existence of federal

subject matter jurisdiction”). 

Rule 12(b)(1) motions to dismiss based upon a lack of subject matter jurisdiction

generally come in two varieties, either facial or factual attacks on the complaint. United States v.

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Ritchie, 15 F.3d 592, 598 (6th Cir. 2004). A facial attack on the subject matter jurisdiction

alleged by a complaint merely questions the sufficiency of the pleading. Id. In reviewing such a

facial attack, a trial court takes the allegations in the complaint as true, a similar safeguard

employed under Rule 12(b)(6) motions to dismiss. Id. On the other hand, when a court reviews

a complaint under a factual attack, no presumptive truthfulness applies to the factual allegations. 

Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990). See also Nat’l Ass’n

of Minority Contractors v. Martinez, 248 F. Supp. 2d 679, 681 (S.D. Ohio 2002). As a result,

this Court may weigh the evidence and resolve any factual disputes when adjudicating such a

jurisdictional challenge. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 2004) (citing Moir

v. Greater Cleveland Reg’l Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990)).

B. Analysis

The Eleventh Amendment provides that “[t]he Judicial power of the United States shall

not be construed to extend to any suit in law or equity, commenced or prosecuted against one of

the United States by Citizens of another State, or by Citizens or Subjects of any foreign state.” 

U.S. Const. amend. XI. “The States’ immunity from suits in federal court applies to claims

against a State by citizens of the same State as well as to claims against a State by citizens of

another State.” Ernst v. Rising, 427 F.3d 351, 358 (6th Cir. 2005) (citing Hans v. Louisiana, 134

U.S. 1, 21 (1890); Alden v. Maine, 527 U.S. 706, 728 (1999); Barton v. Summers, 293 F.3d 944,

948 (6th Cir. 2002)). It is well settled that sovereign immunity applies to “state agents and

instrumentalities,” in addition to the states themselves. Beil v. Lake Erie Corr. Records Dep’t,

282 F. App’x 363, 366 (6th Cir. 2008) (citing Regents of Univ. of Calif. v. Doe, 519 U.S. 425,

429 (1997)); see also Alabama v. Pugh, 438 U.S. 781, 782 (1978) (“There can be no doubt,

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however, that suit against the State and its Board of Corrections is barred by the Eleventh

Amendment, unless [the State] has consented to the filing of such a suit.”). Consequently, a state

is immune from suit in federal court unless Congress abrogates the state’s sovereign immunity,

the state waives its sovereign immunity, or the suit is against a state official and seeks

prospective injunctive and declaratory relief to end a continuing violation of federal law. Carten

v. Kent State Univ., 282 F.3d 391, 398 (6th Cir. 2002).

Ohio’s waiver of immunity under Ohio Revised Code § 2743.02 is involved here. That

statute provides in relevant part that 

[a] civil action against an officer or employee . . . that alleges that the officer’s or

employee’s conduct was manifestly outside the scope of the officer’s or employee’s

employment or official responsibilities, or that the officer or employee acted with

malicious purpose, in bad faith, or in a wanton or reckless manner shall first be filed

against the state in the court of claims, which has exclusive, original jurisdiction to

determine, initially, whether the officer or employee is entitled to personal immunity

. . . and whether the courts of common pleas have jurisdiction over the civil action. 

Ohio Rev. Code § 2743.02(F)(1). Invoking immunity, Defendants Clemens, Neal, and Carroll

argue that this Court lacks subject matter jurisdiction over Plaintiff’s state law claims because

Plaintiff has failed to file in the state court of claims.

In response, Plaintiff argues that the state’s statutory scheme improperly ensnares her in a

Catch-22 in which, if she first filed in the court of claims, she risks losing the right to pursue her

42 U.S.C. § 1983 claims. If instead she filed her federal claims, Plaintiff then posits, she would

in turn lose the right to pursue her state law claims in the court of claims. This scenario arises as

a result of § 2743.02, which provides:

Except in the case of a civil action filed by the state, filing a civil action in the court

of claims results in a complete waiver of any cause of action, based on the same act

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or omission, which the filing party has against any officer or employee, as defined

in section 109.36 of the Revised Code. The waiver shall be void if the court

determines that the act or omission was manifestly outside the scope of the officer’s

or employee’s office or employment or that the officer or employee acted with

malicious purpose, in bad faith, or in a wanton or reckless manner. 

Ohio Rev. Code § 2743.02(A)(1) (emphasis added). Plaintiff challenges the constitutionality of

this waiver provision, asserting that it violates the Supremacy Clause of the United States

Constitution, her due process rights, or unidentified “other state or federal constitutional rights.” 

(ECF No. 14, at 2.) She asserts that because the Supreme Court of Ohio has not directly

addressed the constitutionality of the § 2743.02(A)(1) waiver provision, this Court should certify

the constitutionality issue to the state court 

Defendants oppose certification. They argue that because the Court lacks subject matter

jurisdiction over Plaintiff’s state law claims, it must deny the request for certification and

dismiss the claims involved. Alternatively, Defendants contend that even if jurisdiction exists,

certification would be improper because the Supreme Court of Ohio only accepts certification of

a question of Ohio law. They reason that because Plaintiff invokes in part federal constitutional

rights as grounds for attacking the § 2743.02(A)(1) waiver, Plaintiff is attempting to certify a

federal question to the state court. Defendants then reject Plaintiff’s unspecific reference to

“other state . . . constitutional rights” as failing to articulate a specific question of Ohio law. 

Finally, Defendants assert that the Supreme Court of Ohio has already addressed the

constitutionality of § 2743.02 in Conley v. Shearer, 64 Ohio St.3d 284, 595 N.E.2d 862 (1992).

This Court agrees with at least part of Defendants’ argument. In Conley, the state court

explained that § 2743.02 “does not violate any substantive rights.” Id. at 292, 595 N.E.2d at 869. 

The Supreme Court of Ohio also explained that it is not necessary for a plaintiff to comply with

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the requirements of § 2743.02 in bringing a § 1983 claim (although such a decision carries

consequences as discussed below). Id. at 293, 595 N.E.2d at 870. This precedent and

subsequent federal decisions weigh against granting the request for certification. 

Pursuant to Rule XVIII of the Rules of Practice of the Supreme Court of Ohio, a federal

court may certify questions of law to the Supreme Court of Ohio when “there is a question of

Ohio law that may be determinative of the proceeding and for which there is no controlling

precedent in the decisions of [the] Supreme Court.” R. Prac. S. Ct. Ohio XVIII § 1; see Super

Sulky Inc. v. U.S. Trotting Ass’n, 174 F.3d 733, 744 (6th Cir. 1999). It is well settled that “mere

difficulty in ascertaining local law is no excuse” for a district court to certify a question. Lehman

Bros. v. Schein, 416 U.S. 386, 390 (1974). Moreover, when a question is genuinely unsettled

under Ohio law and is properly certifiable under Rule XVIII, certification by the district court is

not mandatory. See id. at 390-91 (“We do not suggest that where there is doubt as to local law

and where the certification procedure is available, resort to it is obligatory.”). Rather, the

decision to certify rests within the sound discretion of the district court. Id. at 391. 

Federal courts have certified questions of state law in cases where the interests of judicial

and economic efficiency are best served through certification and in cases involving conflicting

federal interpretations as to an important state law question that would otherwise evade state

court review. See Arizonans for Official English v. Ariz., 520 U.S. 43, 76 (1997) (certification

encouraged when leading to judicial and economic efficiency); Geib v. Amoco Oil Co., 29 F.3d

1050, 1060 (6th Cir. 1994) (certification of question where conflicting interpretations existed

between federal courts in interpreting a state law). Although certification to the Supreme Court

of Ohio is more economically efficient for unsettled questions in some cases, it is clear that

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“certification . . . entails more delay and expense than would an ordinary decision of the state

question on the merits by the federal court.” Lehman Bros., 416 U.S. at 394 (Rehnquist, J.,

concurring) (citing Clay v. Sun Ins. Office, Ltd., 363 U.S. 207, 226-27 (1960)). Certification is

therefore inappropriate when “a district court . . . believes that it can resolve an issue of state law

with available research materials already at hand, and makes the effort to do so.” Id. at 395. 

To determine whether certification is warranted, this Court must consider whether the

proffered question involves “Ohio law that may be determinative of the proceeding.” R. Prac. S.

Ct. Ohio XVIII § 1. Only part of Plaintiff’s unspecific arguments rests on Ohio law. But even

assuming that the question posed by Plaintiff may be regarded as satisfying this first hurdle, the

Court must still consider whether the question presents an issue “for which there is no

controlling precedent in the decisions of [the Supreme Court of Ohio].” R. Prac. S. Ct. Ohio 

XVIII § 1; see Super Sulky Inc., 174 F.3d at 744. Conley informs this latter inquiry. The

Supreme Court of Ohio found that the statutory scheme does not present an equal protection

violation or a violation of any substantive right of the state or federal constitutions. If not

providing an outright answer to Plaintiff’s concerns, this suggests the answer to her question and

renders certification inappropriate. Moreover, the Sixth Circuit has provided consistent guidance

on the waiver issue that both pre- and post-dates Conley. Herstrum v. Hodge, 121 F.3d 708,

1997 WL 452299, at *3 (6th Cir. 1997) (unpublished table decision) (“[Appellant] argues that

this court should certify to the Ohio Supreme Court the question of whether the waiver found in

§ 2743.02(A)(1) includes federal causes of action against state employees. While there is no

controlling Ohio Supreme Court precedent on the issue, certification to the Ohio Supreme Court

is unnecessary since the question has been squarely addressed by this circuit on several

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occasions.”). The Court in its discretion therefore denies the motion to certify. (ECF No. 14.)

Absent certification, this leaves for disposition the issue of whether this Court possesses

subject matter jurisdiction over Plaintiff’s state law claims. Plaintiff did not first file in the court

of claims. This Court recognizes the choice Plaintiff faced under the statutory scheme, but

Plaintiff bears the consequence of her litigation choice to pursue her federal claims as she did. 

The Sixth Circuit has long recognized the statutory waiver scheme, negating Plaintiff’s

arguments under the federal constitution. Herstrum, 121 F.3d 708, 1997 WL 452299; Egesimba

v. Ohio Dep’t of Rehab. & Corr., 999 F.2d 539, 1993 WL 262545 (6th Cir. 1993) (unpublished

table decision); Leaman v. Ohio Dep’t of Mental Retardation & Dev. Disabilities, 825 F.2d 946

(6th Cir. 1987). In light of Plaintiff’s filing decisions, this Court lacks jurisdiction over her state

law claims. Consequently, this Court finds Defendants’ motion to dismiss these claims well

taken. 

III. Conclusion

The Court DENIES Plaintiff’s motion to certify (ECF No. 14) and GRANTS

Defendants’ motion to dismiss (ECF No. 10). This Court dismisses Plaintiff’s state law claims. 

IT IS SO ORDERED.

 /s/ Gregory L. Frost 

GREGORY L. FROST

UNITED STATES DISTRICT JUDGE

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